Legal Positivism

All positivists share two central beliefs: first, that what counts as law in any particular society is
fundamentally a matter of social fact or convention (“the social thesis”); second, that there is no
necessary connection between law and morality (“the separability thesis”). It’s most important roots
lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is
due to Jeremy Bentham whose account Austin adopted, modified, and popularized. For much of the
next century an amalgam of their views, according to which law is the command of a sovereign
backed by force, dominated legal positivism and English philosophical reflection about law. By the
mid-twentieth century, however, this account had lost its influence among working legal
philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying
institutions such as courts, and its insistence of the role of coercive force gave way to theories
emphasizing the systematic and normative character of law. The most important architects of this
revised positivism are the Austrian jurist Hans Kelsen and the two dominating figures in the analytic
philosophy of law, H.L.A. Hart and Joseph Raz among whom there are clear lines of influence, but
also important contrasts.

Law as commands: Bentham and Austin

According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a
determinate person or group who have supreme and absolute de facto power -- they are obeyed by
all or most others but do not themselves similarly obey anyone else. The laws in that society are a
subset of the sovereign's commands: general orders that apply to classes of actions and people and
that are backed up by threat of force or “sanction.”

For Austin, since they are commands, laws impose duties on those to whom they are addressed.
Being under the duty means that the person is liable to have undesirable consequences inflicting on
him for acting contrary to the command. The general commands laid down by political rulers
constitute positive law. It is crucial to Austin’s view that sovereign is defined solely in terms of
power, not in terms of justice or any other moral concept. One crucial distinction that Austin draws
is between the question of “what is law?” and “what ought to be law?” He stresses that these two
questions should not be confused. He formulates, “The existence of law is one thing; its merit and
demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry.” In his theory, it is the threat of sanctions that gives agents
a prudent reason to act and thus the sanction accounts for law’s normativity.

It is also a consequence of Austin’s theory that there is no necessary connection between legal
validity and moral obligation. Whether a general command is legally valid depends only on whether
the sovereign issued it. The theory is reductivist, for it maintains that the normative language used in
describing and stating the law, talk of authority, rights, obligations, and so on, can all be analysed
without remainder in non-normative terms, ultimately as concatenations of statements about power
and obedience.

Hart famously critiqued each aspect of Austin’s theory: the picture of the sovereign as a distinct
individual; the conception of law as commands and as primarily prescriptive in nature; and finally,
the emphasis on sanctions as the explanation of law’s normativity. According to Hart, the idea that
law consists merely of orders backed by threats is inadequate to explain modern legal systems.
Modern legal systems have laws governing the formation and implementation of contracts, of wills,
marriages and other executory instruments. Hart calls these types of laws “power conferring rules,”
and argues that they are less in the nature of orders backed by threats, and more in the nature of
rules creating a framework within which individuals can define the scope and limit of their rights,
obligations and liabilities. He argues that it is impossible to view these laws which define the scope
and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and
govern the functioning of governmental institutions, as mere orders backed by threats either.

The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart
points out, the word “command” implies a top-down stable hierarchy of men, with rules being
purely other-regarding. However, this is not true in modern legal systems, as legislations often have
a self-binding force. Hart’s third objection to Austin is with regard to laws such as customary laws,
whose mode or origin excludes them from being treated as commands.

Austin defines a sovereign as “someone to whom the bulk of the given society are in a habit of
obedience; and he is not in a habit of obedience to anyone.” Hart’s criticism is directed both at the
idea of “habitual obedience,” and at the idea that the sovereign is an “uncommanded commander”
of the society. Hart argues that habitual obedience, which is merely convergence of behaviour, is
inadequate to explain the continuity of laws. Mere habits of obedience to orders given by one
legislator cannot confer on the next legislator any right to succeed the old, or to give orders in his
place. Why is the law made by the successor to legislative office already law before even he has
received habitual obedience? To answer this question, it becomes essential to distinguish between a
habit and a rule. Rules require not only convergence of behaviour, but also convergence of attitude.
That is to say, rules are viewed as standards of behaviour, where deviance is considered as meriting
criticism. Habits of obedience also fail to explain the persistence of laws. That is to say, how can a
law made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually
obey him? Once again, this requires us to replace the notion of habits of obedience with a concept
of rules that delineate rights of succession.

Austin’s theory provided the starting point for H.L.A Hart’s. Hart argues that certain types of legal
rules cannot be adequately understood as commands. The rules of criminal law fit the command
model fairly well, since they prohibit particular kinds of conduct and provide for penalties for those
who violate the prohibitions. However, some legal rules do not prohibit or require but rather
empower individuals to do things that would otherwise be impossible for them to do. For example,
the rules of contract law. Laws that impose duties or obligations on individuals are described by Hart
as "primary rules of obligation." In order for a system of primary rules to function effectively,
"secondary rules" may also be necessary in order to provide an authoritative statement of all the
primary rules. Secondary rules may be necessary in order to allow legislators to make changes in the
primary rules if the primary rules are found to be defective or inadequate. Secondary rules may also
be necessary in order to enable courts to resolve disputes over the interpretation and application of
the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition, 2)
rules of change, and 3) rules of adjudication.

In order for the primary rules of a legal system to function effectively, the rules must be sufficiently
clear and intelligible to be understood by those individuals to whom they apply. If the primary rules
are not sufficiently clear or intelligible, then there may be uncertainty about the obligations which
have been imposed on individuals. Vagueness or ambiguity in the secondary rules of a legal system
may also cause uncertainty as to whether powers have been conferred on individuals in accordance
with statutory requirements or may cause uncertainty as to whether legislators have the authority
to change laws. Primary rules of obligation are not in themselves sufficient to establish a system of
laws that can be formally recognized, changed, or adjudicated, says Hart. Primary rules must be
combined with secondary rules in order to advance from the pre-legal to the legal stage of
determination. A legal system may thus be established by a union of primary and secondary rules
(although Hart does not claim that this union is the only valid criterion of a legal system or that a
legal system must be described in these terms in order to be properly defined).

Hart distinguishes between the "external" and "internal" points of view with respect to how the
rules of a legal system may be described or evaluated. The external point of view is that of an
observer who does not necessarily have to accept the rules of the legal system. The external
observer may be able to evaluate the extent to which the rules of the legal system produce a regular
pattern of conduct on the part of individuals to whom the rules apply. The internal point of view, on
the other hand, is that of individuals who are governed by the rules of the legal system and who
accept these rules as standards of conduct.

The "external" aspect of rules may be evident in the regular pattern of conduct which may occur
among a group of individuals. The "internal" aspect of rules distinguishes rules from habits, in that
habits may be viewed as regular patterns of conduct but are not usually viewed as standards of
conduct. The external aspect of rules may in some cases enable us to predict the conduct of
individuals, but we may have to consider the 'internal' aspect of rules in order to interpret or explain
the conduct of individuals.Hart argues that the foundations of a legal system do not consist, as
Austin claims, of habits of obedience to a legally unlimited sovereign, but instead consist of
adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary
or secondary rule may be evaluated. If a primary or secondary rule satisfies the criteria which are
provided by the ultimate rule of recognition, then that rule is legally valid.

There are two minimum requirements which must be satisfied in order for a legal system to exist: 1)
private citizens must generally obey the primary rules of obligation, and 2) public officials must
accept the secondary rules of recognition, change, and adjudication as standards of official conduct.
If both of these requirements are not satisfied, then primary rules may only be sufficient to establish
a pre-legal form of government.

Moral and legal rules may overlap, because moral and legal obligation may be similar in some
situations. However, moral and legal obligation may also differ in some situations. Moral and legal
rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the
obligation to respect the rights of other individuals. However, moral rules cannot always be changed
in the same way that legal rules can be changed.

According to Hart, there is no necessary logical connection between the content of law and morality,
and that the existence of legal rights and duties may be devoid of any moral justification.3 Thus, his
interpretation of the relation between law and morality differs from that of Ronald Dworkin, who in
Law’s Empire suggests that every legal action has a moral dimension. Dworkin rejects the concept of
law as acceptance of conventional patterns of recognition, and describes law not merely as a
descriptive concept but as an interpretive concept which combines jurisprudence and adjudication.

Hart defines legal positivism as the theory that there is no logically necessary connection between
law and morality. However, he describes his own viewpoint as a "soft positivism," because he admits
that rules of recognition may consider the compatibility or incompatibility of a rule with moral values
as a criterion of the rule’s legal validity. Legal positivism may disagree with theories of natural law,
which assert that civil laws must be based on moral laws in order for society to be properly
governed. Theories of natural law may also assert that there are moral laws which are universal and
which are discoverable by reason. Thus, they may fail to recognize the difference between
descriptive and prescriptive laws. Laws that describe physical or social phenomena may differ in
form and content from laws which prescribe proper moral conduct.

Hart criticizes both formalism and rule-scepticism as methods of evaluating the importance of rules
as structural elements of a legal system. Formalism may rely on a rigid adherence to general rules of
conduct in order to decide which action should be performed in a particular situation. On the other
hand, rule-scepticism may not rely on any general rule of conduct in order to decide which action
should be performed in a particular situation. Formalism may produce such inflexibility in the rules
of a legal system that the rules are not adaptable to particular cases. Rule-scepticism may produce
such uncertainty in the application of the rules of a legal system that every case has to be
adjudicated. International law is described by Hart as problematic, because it may not have all of the
elements of a fully-developed legal system. International law may in some cases lack secondary rules
of recognition, change, and adjudication. International legislatures may not always have the power
to enforce sanctions against nations who disobey international law. International courts may not
always have jurisdiction over legal disputes between nations. Hart also argues that by clarifying
vague or indeterminate laws, judges may actually make new laws. He explains that this argument is
rejected by Ronald Dworkin, who contends that judicial discretion is not an exercise in making new
laws but is a means of determining which legal principles are most consistent with existing laws and
which legal principles provide the best justification for existing laws.

Hans Kelsen (1881–1973), in his complex ‘pure theory of law’, expounds a subtle and profound
account of the way in which we should understand law. We should do so, he insists, by conceiving it
to be a system of ‘oughts’ or norms. Kelsen does concede that the law consists also of legal acts as
determined by these norms. But the essential character of law derives from norms – which include
judicial decisions and legal transactions such as contracts and wills. Even the most general norms
describe human conduct. To understand ‘the law’ we need formal categories, such as the basic norm
– or Grundnorm – which, as its name suggests, lies at the base of any legal system. Legal theory,
argues Kelsen, is no less a science than physics or chemistry. Thus we need to disinfect the law of the
impurities of morality, psychology, sociology, and political theory. He thus propounds a sort of
ethical cleansing under which our analysis is directed to the norms of positive law: those ‘oughts’
that declare that if certain conduct (X) is performed, then a sanction (Y) should be applied by an
official to the offender. His ‘pure’ theory thus excludes that which we cannot objectively know,
including law’s moral, social, or political functions. Law has but one purpose: the monopolization of
force.

Law as a social fact: Joseph Raz

Raz argues, however, that the law is autonomous: we can identify its content without recourse to
morality. Legal reasoning, on the other hand, is not autonomous; it is an inevitable, and desirable,
feature of judicial reasoning. For Raz, the existence and content of every law may be determined by
a factual enquiry about conventions, institutions, and the intentions of participants in the legal
system. The answer to the question ‘what is law?’ is always a fact. It is never a moral judgement.
This marks him as a ‘hard’ or ‘exclusive’ positivist. ‘Exclusive’ because the reason we regard the law
as authoritative is the fact that it is able to guide our behaviour in a way that morality cannot do. In
other words, the law asserts its primacy over all other codes of conduct. Law is the ultimate source
of authority. Thus, a legal system is quintessentially one of authoritative rules. It is this claim of
authority that is the trademark of a legal system. Raz identifies three principal claims made by
positivists and attacked by natural lawyers: The ‘social thesis’: that law may be identified as a social
fact, without reference to moral considerations. The ‘moral thesis’: that the moral merit of law is
neither absolute nor inherent, but contingent upon ‘the content of the law and the circumstances of
the society to which it applies’. The ‘semantic thesis’: that normative terms such as ‘right’ and ‘duty’
are not used in moral and legal contexts in the same way. Raz accepts only the ‘social thesis’ on the
basis of the three accepted criteria by which a legal system may be identified: its efficacy, its
institutional character, and its sources. From all three, moral questions are excluded. Thus, the
institutional character of law means simply that laws are identified by their relationship to certain
institutions (e.g. the legislature). Anything – however morally acceptable – not admitted by such
institutions is not law, and vice versa.

Raz actually postulates a stronger version of the ‘social thesis’ (the ‘sources thesis’) as the essence of
legal positivism. His major justification for the sources thesis is that it accounts for a primary function
of law: the setting of standards by which we are bound, in such a way that we cannot excuse our
non-compliance by challenging the rationale for the standard.